RECOMMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER ON
ATTORNEY'S FEES

Case No. 19982206

The Recommended Order in this matter on October 3, 2001 awarded the
Complainant, Marilyn Rosin, her costs and reasonable attorney’s fees for
prevailing in her action against the Respondent, Rite-Way Leasing Company. On
April 23, 2002, the Commission affirmed the Hearing Examiner’s Recommended
Findings of Fact, Conclusions of Law and Order, including the award of
attorney’s fees. On May 7, 2002, the Complainant submitted a petition for costs
and fees as directed by the Hearing Examiner. The Respondent expressed concern
for the amount of the fees and costs in letters to the Hearing Examiner,
culminating in a May 23, 2002 formal response to the Complainant’s petition for
costs and fees.

The Hearing Examiner has received no briefs or other information from the
Complainant regarding costs and fees beyond the initial petition. The Hearing
Examiner has considered the argument presented by the Respondent and now makes
the following:

RECOMMENDED FINDINGS OF FACT

On October 9, 1998, the Complainant, Marilyn Rosin, filed a complaint
alleging discrimination due to a disability. She alleged that the Respondent,
Rite-Way Leasing Company, effectively terminated her due to a perceived mental
or physical disability. The Complainant also alleged that the Respondent
failed to accommodate her disability.

On January 20, 1999, an Initial Determination was issued, finding probable
cause to believe that the Respondent discriminated against the Complainant
based on her disability. The Initial Determination found no probable cause to
believe that the Respondent failed to accommodate her disability.

The Complainant appealed the finding of no probable cause. Her appeal was
denied on November 9, 1999 by the Hearing Examiner and on April 13, 2000 by
the Commission.

After conciliation failed, the probable cause finding was brought to
hearing before the Hearing Examiner.

On October 3, 2001, the Hearing Examiner found that the Respondent had
discriminated against the Complainant on the basis of disability and entered a
recommended order awarding the Complainant her costs and reasonable attorney’s
fees in the proceeding. On April 22, 2002, after appeals by both parties, the
Commission affirmed the Hearing Examiner’s decision and order.

On May 7, 2002, the Complainant filed a petition for costs and attorney’s
fees, together with affidavits executed by her attorney, Douglas J. Phebus.

The Complainant has incurred certain costs in connection with the
proceeding, which are as follows:

Photocopying costs in the amount of $99.80

Expert costs in the amount of $250.00

Delivery costs in the amount of $49.65

Deposition/Statement costs in the amount of $445.60

Legal research costs in the amount of $27.26

Medical records costs in the amount of $106.68

The Complainant’s attorney, Douglas J. Phebus, is currently employed by
the firm of Lawton and Cates, S.C. Phebus first represented the Complainant in
this matter while he was employed by Action Law, S.C.

The usual and customary fee charged by Douglas J. Phebus to his individual
clients is $150.00 per hour.

The Complainant has filed an itemized bill that reflects that her attorney
expended a total of 85.75 hours representing the client.

Of the 85.75 hours, 5.0 hours were not reasonably necessary to bring this
claim to its conclusion.

CONCLUSIONS OF LAW

A prevailing complainant in proceedings before the Madison Equal
Opportunities Commission is entitled to recover costs, including reasonable
attorney’s fees.

It is appropriate to use an attorney’s customary billing rate when
calculating reasonable attorney’s fees where the fees are reasonably necessary
and not duplicative of other work.

An attorney’s customary rate for billing is rebuttably presumed to be a
reasonable rate before the Commission.

A prevailing Complainant is entitled to the payment of costs, including a
reasonable attorney’s fee, even when the complainant does not prevail on all
issues properly before the Commission.

ORDER

The Respondent is ordered to pay the Complainant’s attorney’s fees in the
amount of $12,112.50 within thirty (30) days of this order’s becoming final.

The Respondent is ordered to pay the Complainant’s costs in the amount of
$978.99 within thirty (30) days of this order’s becoming final.

MEMORANDUM DECISION

This case features two objections to a petition for attorney’s fees and
costs. The Respondent objects to fees related to an unsuccessful appeal of an
Initial Determination and specific fees related to arguments that did not
succeed at the Hearing Examiner review stage.

There is a rebuttable presumption that an attorney’s regular billing rate is
reasonable and it is the Respondent’s burden to demonstrate that it is not,
given the attorney’s experience and the rates of area lawyers with similar
experience. The Respondent does not contest the Complainant’s hourly rate. Once
the Complainant offers an itemized statement of time expended in her petition,
it is the Respondent’s burden to make a particularized showing that the billing
is wholly inaccurate or that specific items are not reasonably necessary or
duplicative of other work.

For purposes of this decision the Hearing Examiner will break up the long
history of this litigation into three parts. All expenditures made by the
Complainant from the filing of the complaint up to the Initial Determination
were reasonable and non-duplicative. Work expended on issues to which there was
a finding of no probable cause at this stage are necessary because of the
tentative nature of the untried claims.

The Initial Determination, issued on January 20, 1999, determined that there
was probable cause to believe that the Complainant had been discriminated
against on the basis of disability and no probable cause to believe that the
Respondent failed to accommodate a disability. The Investigator/Conciliator
found that the Complainant had difficulty resulting from a broken sternum and
had also been perceived by the Respondent as “having a physical or mental
disability.”

From the Initial Determination, up to the Pre-Trial Conference held on July
24, 2000, the Complainant devoted some of her time preparing an appeal of the no
probable cause portion of the Initial Determination. Items listed on the
petition for fees and costs from this time period include:

1-28-99

Prepare and mail appeal for substantial weight review

1.0

2-10-99

Review notice of appeal

0.5

5-4-99

Letter to the Hearing Examiner

0.5

10-29-99

Telephone conference with EOC

0.25

11-10-99

Review decision

0.25

11-11-99

Correspondence to EOC

0.25

1-3-00

Brief to EOC

2.00

4-20-00

Review of EOC decision

0.25

Total

5.00

These fees were not incurred towards an issue that proceeded to hearing.
Therefore, the Hearing Examiner concludes that it would be inappropriate to
reward the Complainant and penalize the Respondent for work on an issue that was
not properly before the Commission. However, many other costs not isolated above
appear to be closely related to pursuit of the issues for which a hearing was
actually held. Those efforts are awardable. Accordingly, the 85.75 hours claimed
in the Complainant’s petition are hereby reduced to 80.75 hours.

The final period examined here extends from the July 24, 2000 Pre-Hearing
Conference to the present. The Complainant’s expenditures during this period
went towards the hearing and Commission appeal of the alleged discrimination due
to disability. The Hearing Examiner determined that the Respondent had not
discriminated against the Complainant in connection with her broken sternum.

The Hearing Examiner did find that the Respondent discriminated against the
Complainant with regard to a perceived disability. The perceived disability
related to a loss-of-consciousness incident the Complainant suffered at the
workplace. The Complainant was found unconscious in a break room and was
instructed to get medical clearance regarding the fainting before a
reinstatement could occur. The Commission affirmed the Hearing Examiner’s
findings.

The Respondent objects to certain fees from this time period because it feels
that it should not have to pay for lines of argument that ultimately proved
unsuccessful. The Respondent does not argue that some fees and costs were
unreasonable. The Hearing Examiner notes that the Respondent seems not to argue
that the Complainant’s costs and fees for her unsuccessful appeal to the
Commission should also be denied. This lack of consistency on the part of the
Respondent casts doubt on its argument about Dr. Daniel Icenogle’s expert
testimony.

The primary argument advanced by the Complainant to the Hearing Examiner
centered around discrimination based on her prior sternum injury. To this end,
the Complainant obtained expert testimony from Dr. Icenogle and paid to acquire
medical records. The Respondent asks that the Complainant be denied payment for
fees and costs for items directly related to the unsuccessful sternum argument.
The Respondent does not provide a listing of which specific fees and costs are
unreasonable.

To answer whether or not the Hearing Examiner may accept the Respondent’s
objection requires an examination of the purpose of attorney’s fees as a remedy.
The Ordinance has a clear intent to encourage lay citizens to resolve
discriminatory injuries through the Commission’s process. Rose v. Marquip,
MEOC Case No. 21026 (Ex. Dec. 6/29/89). The Ordinance requires a make-whole
remedy. Teich v. Center for Prevention and Intervention, MEOC Case No.
20002153 (Ex. Dec. 6/12/02).

These ideas combine to form an overarching principle that the Commission
encourages victims of discrimination to secure attorneys by allowing attorney’s
fees and costs. The history of the Commission shows that a significant portion
of Complainants lack the financial power needed to hire attorneys, making awards
of attorney’s fees a vital ingredient to pursuing claims. While attorneys are
not necessary in the complaint review process, any judicial action may be
fraught with hazards that attorneys are better equipped to handle. Schenk v.
City of Madison (St. Mary’s), No. 02-CV-885 (Dane Cty. Cir. Ct. 6/19/02).

In effect, the Respondent seeks to pay only for the fees that directly
pertain to the Complainant’s arguments that the Hearing Examiner determined were
dispositive of liability. In the Hearing Examiner’s view, using this standard
would severely limit complainants’ ability to secure top-quality representation.
Complainants would be less likely to allege discrimination due to multiple
protected classes or offer arguments in the alternative for fear that fees and
costs spent on alternatives could not be recovered. This scenario would cause
attorneys to refuse to represent complainants before the Commission or not
represent complainants to the best of their ability.

The public good does not benefit by a system that encourages complaints to be
brought only when complainants are sure they will prevail. Once a claim has made
it past the probable cause stage, a Complainant should not be unreasonably
hampered in pursuing all of her potential claims by prospective application of
some likelihood-of-success equation.

In addition, a request to remove specific expenditures from a petition for
costs is difficult to grant in this instance because a substantial portion of
the work needed to prove unsuccessful arguments is reasonably necessary to
prevail on issues that succeeded. The Hearing Examiner is not able to determine
precisely what percentage of events that contributed to both arguments are
successful or unsuccessful. It is not the Hearing Examiner’s job alone to make a
determination of what spending is unreasonable. The burden clearly rests on the
Respondent to identify with a fair degree of specificity those items that it
challenges and present reasons for the challenges.

In hindsight, the Hearing Examiner is somewhat in agreement with the
Respondent concerning the necessity of Dr. Icenogle’s testimony. It is tempting
to second-guess litigation decisions made months before when reviewing a
petition for fees. It is to temper that tendency towards Monday-morning
quarterbacking that the burden rests so heavily on the Respondent to challenge
petitions for fees and costs with specificity. Still, the Hearing Examiner finds
that the Respondent failed to carry its burden of proof as to rebutting specific
expenditures as being unreasonable.

The Ordinance demands a make whole remedy. If the Complainant did not recover
the full amount of fees and costs due, the Complainant would be in a position of
owing their attorney money. The Complainant would not be in as good a position
as she would have been absent the discriminatory actions. The standard for
awarding attorney’s fees is whether the outcome of the case achieved the purpose
of bringing the initial claim. Sprague v. Rowe & Hacklander-Ready, MEOC
Case No. 1462 (Comm. Dec. on Atty. Fees 2/9/98), Chung v. Paisans, MEOC
Case No. 21192 (Ex. Dec. on Atty. Fees 7/29/93 and 9/23/93), Watkins v. LIRC,
117 Wis. 2d 753, 345 N.W.2d 482 (1984). There is no question here that the
Complainant did prevail on a significant issue, that is, showing that the
Respondent discriminated against her based on her membership in the protected
class “disability.” The Complainant is entitled to be made whole for achieving
the purpose of her initial claim.

HEARING EXAMINER'S RECOMMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND
ORDER

Case No. 19982206

This matter came before Madison Equal Opportunities Hearing Examiner Clifford
E. Blackwell, III, on November 1 and 2, 2000. The Complainant, Marilyn Rosin,
appeared by her attorneys Lawton & Cates, S.C., by Douglas J. Phebus. The
Respondent, Rite-Way Leasing, appeared by its attorney Walter R. Stewart. On the
basis of evidence and briefs submitted, the Hearing Examiner now makes his
Recommended Findings of Fact, Conclusions of Law and Order, as follows:

The Respondent, Rite-Way Leasing Company ("Rite-Way"), is a
corporation principally located in Madison, Wisconsin at 4212 Robertson Road
that provides school bus transportation services.

In 1985, the Complainant was involved in a motor vehicle accident that
resulted in injuries to her sternum.

On August 9, 1996, the Complainant applied for a position as a Bus Aide
with the Respondent. The duties of a Bus Aide generally include the
supervision and assistance of children on the school bus.

The Complainant earned $13 per bus route, or $39 a day.

The Respondent hired the Complainant for the 1996-97 school year. The
Complainant was assigned to two (2) routes with kindergarten through
fifth-grade children and one (1) route with four year-old children.

The Respondent rehired the Complainant for the 1997-98 school year for the
same position and duties.

The Respondent rehired the Complainant for the 1998-99 school year. Before
the school year began, the Complainant filled out a form requesting that she
be given only one (1) four year-old route and two (2) routes with older
children. The Complainant desired this route arrangement because she
occasionally found lifting young children difficult.

On September 9, 1998, the Complainant was assigned to two (2) four
year-olds routes and one (1) older children route.

On September 10, 1998, the Complainant requested that she be assigned to
work two (2) older children routes and one (1) four year-old route.

On September 11, 1998, the Complainant expressed dissatisfaction with the
routes to her direct supervisor, Roy Feltz.

In the early part of the 1998-99 school year, the Respondent received a
complaint from an unidentified parent about the Complainant's behavior on
the school bus.

On September 17, 1998, a meeting was held to address the Complainant's
concerns and the Respondent's concerns regarding the Complainant's
performance. The meeting was attended by the Complainant, one of the owners,
Nancy Kiefer, the Personnel Director, Rick Johnson, and the Complainant's
Supervisor, Roy Feltz. No changes were made as a result of this meeting.

The Complainant met privately with Mark Lichte, the principal of Frank
Allis School. Lichte asked the Respondent to place the Complainant on routes
serving the school because of her exemplary work.

On September 21, 1998, the Complainant's physician, Dr. Susan Padberg,
wrote a letter setting forth work restrictions for the Complainant due to
sternum pain. The restrictions involved not working more than one (1) four
year-old route per day. The letter did not indicate the Complainant had a
physical disability, merely physical discomfort. The letter did not indicate
that the Complainant had a condition that would substantially limit a life
activity.

On Friday October 2, 1998, the Complainant presented her work restrictions
to Roy Feltz as set forth in the September 21 Padberg letter. The
Complainant was told that a meeting on Tuesday, October 6, would be held to
address the restrictions.

On October 5, 1998, while in the Respondent's driver break room, the
Complainant lost consciousness and collapsed to the floor. Paramedics were
called, but upon regaining consciousness, Rosin declined medical attention.

On October 6, 1998, the Respondent instructed the Complainant to obtain
medical clearance addressing the loss of consciousness. Later that day, the
Complainant provided a statement from Dr. Benjamin Atkinson restating work
restrictions related to her sternum. The statement did not address the loss
of consciousness.

At a meeting on October 6, 1998, the Complainant was placed on family
medical leave by the Respondent and was told that the Respondent would
review her job status in thirty (30) days.

On October 7, 1998, a letter from Dr. Padberg was given to the Respondent.
Dr. Padberg indicated that the Complainant had a clean bill of health and
the loss of consciousness on October 5 would not affect her work.

The Respondent took no action with respect to Dr. Padberg's October 7
letter and made no effort to recall the Complainant or contact her.

The Respondent had knowledge of the October 7 letter's content before the
date set for the thirty (30) day job status review meeting.

The Complainant filed a claim for unemployment compensation.

The Complainant applied for jobs after being placed on family medical
leave.

The Complainant did not find a job.

The last date of the Complainant's job search was February 24, 1999.

CONCLUSIONS OF LAW

The Complainant, Marilyn Rosin, is an individual entitled to the
protection of the City of Madison Equal Opportunities Ordinance, Sec. 3.23,
M.G.O. by virtue of being regarded as having a disability.

The Respondent, Rite-Way Leasing Company, is an employer subject to Sec.
3.23(2)(m), M.G.O.

The Respondent did not have knowledge of or regard the Complainant as
having a physical disability as applicable under Sec. 3.23(2)(m), M.G.O.

The Respondent did regard Complainant as having a mental impairment as
applicable under Sec. 3.23(2)(m), M.G.O.

The Respondent violated Sec. 3.23, M.G.O., by discriminating against the
Complainant in effectively terminating her because it regarded her as having
a mental impairment.

The Complainant reasonably mitigated damages until February 24, 1999.

ORDER

The Respondent is ordered to cease discrimination against the Complainant.

The Respondent is ordered to pay the Complainant at the rate of $39 per
day for days in which the Complainant did not work up to the date of
February 24, 1999, no later than thirty (30) days from this order becoming
final.

The Respondent is ordered to pay interest on all amounts due pursuant to
Order No. 2. Said interest shall be computed at a rate of five percent (5%)
per annum from the time the amount became due or would have become due had
she been reemployed on October 7, 1998, no later than thirty (30) days from
this order becoming final.

The Complainant shall submit a petition for her reasonable costs and fees
including a reasonable attorney's fee incurred in connection with this
complaint. The petition shall be filed with the Commission within fifteen
(15) days of this order's becoming final. The Respondent shall have fifteen
(15) days from receipt of the petition to respond. The Complainant shall
have ten (10) days to reply.

MEMORANDUM DECISION

As with most cases of discrimination today, the Complainant lacks direct
evidence of discrimination. The courts and administrative agencies must examine
the record for indirect evidence of discrimination. In this approach, the
Commission utilizes the burden-shifting paradigm set forth in McDonnell-Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.
Ed 2d 207 (1981). In this approach, the Complainant must first set forth
evidence that by itself is sufficient to demonstrate a prima facie claim of
discrimination. If the Complainant meets this initial burden, the burden shifts
to the Respondent to present a legitimate, nondiscriminatory reason for its
action. If the Respondent presents such an explanation for its action, the
burden once again shifts, this time back to the Complainant to demonstrate that
the reason proffered by the Respondent is either not credible or is otherwise a
pretext for discrimination. The ultimate burden of proof remains with the
Complainant to demonstrate each and every element of discrimination including
the entitlement to damages and the amount of damages.

The elements of a prima facie case include membership in a protected class, a
sufficiently adverse employment action, and reason to believe the action
occurred as a result of membership in the protected class. As part of
establishing a prima facie case of discrimination based on disability, a
Complainant must show membership in a protected class by satisfying the
definition of disability for purposes of the Madison Equal Opportunity
Ordinance1. On this record, the Hearing Examiner must discuss both physical and
mental impairments. With regard to her physical limitation, the Complainant
fails to satisfy the first prong of the test, and as such, does not establish a
prima facie case. The Complainant fails to show that her injury is a substantial
limitation on a major life activity. The Complainant offers the September 21
letter from Dr. Padberg and testimony from the Complainant herself as proof of
physical disability. However, the letter only indicates that the Complainant
experiences some pain, it does not identify anything leading to a disability.
While the Hearing Examiner has no doubts that the Complainant's injury was
painful, proving that she has a disability requires more and may require the
testimony of a medical expert. Busto v. Wisconsin Power and Light, MEOC
Case No. 20945 (Comm. Dec. 3/14/90, Ex. Dec. 9/25/89), aff'd by State ex rel.
Elizabeth Busto v. MEOC and WP&L, 90 CV 1594 (Dane County Cir. Ct.
1/9/91).

The Complainant argues that the Respondent had knowledge of or did regard her
as having a physical disability. However, the Complainant has not sufficiently
satisfied her burden of proof by showing that she adequately informed the
Respondent of her need for work restrictions prior to October 2, 1998. Both
parties offer differing testimony regarding when mention of a sternum injury
took place. The Complainant claims that on the 11th and 18th of September, she
informed the Respondent of her desire to cease working the four year-old routes
due to chronic chest pain exacerbated by the occasional need to lift children
into their seats. The Respondent denies this, claiming that the Complainant
talked about work issues such as higher pay, without mentioning the chest pain.
Without delving too deeply into credibility, the Commission has recognized that
mere mention of a possible lifting-related injury is not enough to establish
knowledge of a disability. Wopat v. St. Vincent de Paul Society, MEOC
Case No. 2551 (Ex. Dec. 10/7/80).

The Respondent did not regard the Complainant as having a physical
disability. By the Complainant's own admission, she did not seek medical
treatment or restrictions related to her chest pain and her work until September
21, 1998. In addition, the Complainant had worked for two (2) years without
incident or mention of chest pains, indicating that the Complainant did not find
the injury to be substantially limiting. None of the Complainant's route
preference forms mention any problems with pain. At most, the Respondent might
have known that several years before, the Complainant had been in an accident.
But that knowledge does not rise to the level of regarding the Complainant as
having a physical disability. Id.

There is no dispute that the Respondent had knowledge of the Complainant's
injury and work restrictions on Friday, October 2, 1998, when the Complainant
delivered Dr. Padberg's letter to her supervisor. The Respondent did not
immediately shift routes, but did schedule a meeting after the intervening
weekend on Tuesday, October 6, to speak with the Complainant about her
restrictions and incorporate them into the schedule. Ostensibly, this shows a
good faith effort, albeit not an immediate one, to make changes to keep an
experienced employee. It is not indicative of steps being taken to terminate an
employee based on knowledge of her disability. As a result, the Hearing Examiner
finds no discrimination based on an actual or perceived disability relating to
the Complainant's sternum injury.

The Complainant does establish a prima facie case for discrimination based on
mental disability. After the Complainant's loss of consciousness, the Respondent
required her to receive medical clearance to work again. The Respondent was
fearful that the Complainant might suddenly lose consciousness while on the bus,
thereby endangering herself and children. On the same day, the Respondent placed
the Complainant on indefinite family leave, promising to revisit the situation
in thirty (30) days. The Complainant brought in a letter from her physician the
next day, giving her full clearance to work again. The Respondent claims to have
actually seen the letter anytime up to a month after October 7. The accuracy of
that statement does not change the fact that the Respondent had full knowledge
that the Complainant was ready and able to return to work, but did nothing to
retain her.

The Respondent, by virtue of requiring the Complainant to obtain medical
clearance to work, regarded the Complainant as possessing some kind of mental
impairment. The Respondent also believed that this mental impairment limited the
Complainant's ability to fulfill her duties as a Bus Aide, in that she posed a
risk to children's safety. The Respondent's constructive termination of the
Complainant is a sufficiently adverse action, paired with its failure to follow
through on its pledge to examine the situation after a thirty (30) day period.
The Respondent failed to recall the Complainant because it regarded the
Complainant as having a mental impairment.

With the Complainant's initial burden satisfied, the burden shifts to the
Respondent to articulate a legitimate, nondiscriminatory reason for the action.
The Respondent satisfies its burden by articulating a legitimate reason. The
Respondent advocates that safety concerns for the Complainant and the children
on the bus were the reason for the placement of the Complainant on indefinite
leave. It is unnecessary for the Hearing Examiner to question the importance of
safety in the workplace, especially when the job entails public contact and
children.

When the Respondent satisfies its burden of producing a legitimate reason for
an adverse action, the Complainant may still prevail if she can show the reason
is pretextual or is not credible. When looking at the actions Respondent took
following the Complainant's loss of consciousness, it is apparent that the
Respondent evidenced no desire to retain the Complainant. The Respondent did not
allow the Complainant to resume working on October 6, 1998, until the
Complainant had produced medical clearance concerning the blackout. The
Respondent placed the Complainant on family medical leave, with a re-evaluation
to take place in thirty (30) days. The perceived mental disability was the sole
factor in the medical leave decision.

On October 7, the Complainant presented the Respondent with a clearing
statement that should have triggered a duty to respond. The Respondent received
the clearing statement from Dr. Padberg indicating that the Complainant had no
mental disability and was fully cleared to work before the thirty (30) day
re-evaluation. When Dr. Padberg cleared the Complainant to work, the Respondent
took no action. No re-evaluation was held and no contact with the Complainant
was ever made. The Respondent's non-response demonstrates the Respondent's bad
faith and pretext. The bad faith overcomes the inference of reasonableness of
the Respondent's proffer, and therefore it is clear that on this record, the
Respondent was illegally motivated by regarding the Complainant to have had a
mental impairment when it constructively terminated her.

Once discrimination is found, the Hearing Examiner must determine what will
make the Complainant whole again. Possible awards of damages may come in the
form of back pay, emotional damages, out-of-expense damages, costs, and
attorney's fees. In certain circumstances, some damage may be presumed, but it
is generally the Complainant's burden to establish each element of damages. In
this case, the Complainant claims to have lost back pay in the amount of
thirty-nine dollars ($39) per day. While the Complainant might normally receive
lost wages for a reasonable period, the Respondent may reduce the entitlement to
the award by demonstrating that the Complainant has failed to mitigate damages.

In this matter, the burden shifts to the employer to show that a complainant
did not use due diligence in seeking other employment to mitigate the wages lost
due to the employer's discrimination. Steinbring v. Oakwood Lutheran Home,
MEOC Case No. 2763 (Comm. Dec. 3/10/83, Ex. Dec. 2/11/82). It is an established
tenet of law that the victim of a tort has a duty to mitigate damages. Savino
v. C.P. Hall, 199 F.3d 925, 934-35 (7th Cir. 1999). The doctrine of
avoidable consequences, in this case, required the Complainant to make
reasonable efforts to seek employment after being effectively terminated by the
Respondent.

It is the Respondent's burden to raise the issue of insufficient mitigation
of damages and to demonstrate a lack of mitigation on the part of the
Complainant. The Respondent argues that the Complainant, by filing for
unemployment benefits on October 9, 1998, had no desire to be reinstated or to
mitigate damages. This action does not eradicate the Respondent's obligation to
follow through on its medical leave procedure. There is no evidence on this
record that shows the Respondent had any plans or desire to give the Complainant
the opportunity to prove her capability at a thirty (30) day hearing or any
other time. The Complainant did try to mitigate her damages by seeking other
employment. The record reflects multiple instances where the Complainant applied
for comparable jobs through February 24, 1999, but was denied each time.

The Complainant offers documents showing the results of some job searching
and testimony from herself and her husband indicating she has sought out jobs
from October 1998 to the present. The Hearing Examiner finds it unlikely that
the Complainant has pursued a job search with reasonable diligence for the
entire period of her unemployment. A line must be drawn beyond which a
terminated employee may not receive awarded pay, as the employee should
eventually have found comparable employment. Williams v. Pharmacia, Inc.,
137 F.3d 944, 954 (7th Cir. 1997). That being the case, the Hearing Examiner
must examine the record to determine at what point due diligence ceased. On this
record, the last evidence of a job search comes on February 24, 1999. As a
result, an award of back pay will extend only up to that date.

Victims of employment discrimination are entitled to recover back pay,
pre-judgment interest2, and costs and attorneys fees3. As discussed above, the
Complainant is entitled to back pay up to February 24, 1999. The Complainant
would be doubly awarded if she were allowed to keep the money she received in
the form of unemployment benefits. To remedy this, the Complainant is directed
to reimburse the state unemployment compensation fund for the employment
compensation she received from October 9, 1998 to February 24, 1999.

The ordinance permits damages for emotional distress. In this instance, the
best evidence that the Complainant suffered emotional damages is that coming
from the Complainant herself. Competent evidence of a Complainant's emotional
distress may be established by her testimony alone. Chomicki v. Wettekind,
128 Wis.2d 188, 201, 381 N.W.2d 561, 568 (Ct. App. 1985) (quoting Crawford v.
Garnier, 719 F.2d 1317, 1324 (7th Cir. 1983). As a result, the Hearing
Examiner must determine if the record indicates competent evidence of the
Complainant's emotional distress. On this record, the Hearing Examiner is unable
to locate any evidence that would establish emotional damages. The Hearing
Examiner has no doubt that the Complainant, like most discrimination victims,
suffered some degree of emotional distress. However, the Hearing Examiner may
not make an award for this component of damages unless the record clearly
supports that award. Mere references to anguish or being upset fail to provide
the Hearing Examiner with sufficient support to make an award of emotional
distress damages.

When discrimination is found, the Complainant is entitled to an award of
costs and attorney's fees where appropriate. Watkins v. LIRC, 117 Wis.2d
753, 345 N.W.2d 482 (1984). The award of attorney's fees exists to help restore
a prevailing complainant to the same position she would have been in had no
discrimination requiring expenses to vindicate her rights ever took place. Id.
Even where the amount of the other damages is small or nonexistent, the awarding
of fees and costs represents a vindication of a complainant's position against
discrimination. Rogers v. New Horizons, MEOC Case No. 19982232 (Ex. Dec.
8/10/99), Chung v. Paisans, MEOC Case No. 21192 (Ex. Dec. on liability
2/10/93, on attorney's fees 7/29/93 and 9/23/93)

The Hearing Examiner will not order reinstatement, given that the Complainant
has failed to show substantial recent efforts in obtaining a job and appears to
be content with her employment status as it stands.

Signed and dated this 3rd day of October, 2001.

EQUAL OPPORTUNITIES COMMISSION

Clifford E. Blackwell III
Hearing Examiner

1Madison General Ordinance Sec. 3.23(2)(m) defines
disability, in part, as:
1. A physical or mental impairment which substantially limits one or more of
such person's major life activities; or
2. A record of having such an impairment; or
3. Being regarded as having such an impairment.